Johnson v. Johnson

IN THE UTAH COURT OF APPEALS

‐‐‐‐ooOoo‐‐‐‐

Mark Lawrence Johnson, ) OPINION
)
Petitioner and Appellant, ) Case No. 20100705‐CA
)
v. )
) FILED
Elizabeth Ann Johnson nka ) (January 26, 2012)
Elizabeth Ann Zoric, )
) 2012 UT App 22
Respondent and Appellee. )

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Second District, Farmington Department, 840735185
The Honorable David M. Connors

Attorneys: Raymond B. Rounds, Ogden, for Appellant
Bryce M. Froerer, Ogden, for Appellee

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Before Judges Voros, Davis, and Christiansen.

VOROS, Associate Presiding Judge:

¶1 This appeal involves the allocation of the military retirement benefit of an
employee spouse pursuant to a 1984 divorce decree. Mark Lawrence Johnson, a retiree
from the United States Air Force, seeks review of the amount of his military retirement
the trial court awarded to his ex‐wife, Elizabeth Ann Zoric. We affirm in part, reverse
in part, and remand for further proceedings.
 BACKGROUND

¶2 Johnson and Zoric were married from 1974 to 1984.1 They had two children
together. During the marriage, Johnson accrued approximately ten years of service in
the United States Air Force. At the time of the divorce, Johnson was a Staff Sergeant at
a pay grade of E‐5. In the divorce decree, the trial court awarded Zoric one‐half of ten
years of Johnson’s military retirement. Because Johnson’s retirement had yet to vest,
the trial court did not determine a specific amount owed to Zoric.

¶3 In 1998, Zoric made an attempt to claim her portion of Johnson’s retirement;
however, the retirement office denied her application on the ground that the court order
she submitted lacked specificity. Thereafter, Zoric allegedly made statements to the
parties’ adult son to the effect that she was not intending to seek her portion of
Johnson’s retirement. According to Johnson, the son conveyed those statements to
Johnson and, as a result, he “made substantial changes in his life financially.”

¶4 In 1999, Johnson retired and began receiving military retirement benefits. At that
time he was a Master Sergeant at a pay grade of E‐7. His military pension was thus
calculated based on a pay grade of E‐7. In September 2000, Johnson received a veteran’s
disability award for various ailments that arose after the divorce. Johnson’s final
retirement benefit was reduced by amounts Johnson received under that award.

¶5 Zoric next attempted to secure her portion of Johnson’s military retirement in
October 2008, when she filed a Qualified Domestic Relations Order (QDRO).2 In
keeping with the 1984 divorce decree, the trial court awarded Zoric a share of Johnson’s

1. Contrary to the implication of Johnson’s brief, the divorce court expressly found that
“neither party has superior possession by way of morality over the other.”

2. The Retirement Equity Act of 1984, Pub. L. No. 98‐397, 98 Stat. 1426 (1986) (codified
as amended at 29 U.S.C. § 1056(d)(3)(B) (2010)), created what is known as a Qualified
Domestic Relations Order, or QDRO. See Bailey v. Bailey, 745 P.2d 830, 832 (Utah Ct.
App. 1987). A QDRO instructs “the trustee of a retirement plan and specifies how
distributions should be made, to whom, and when. Although a QDRO cannot order the
payment of a benefit which is not allowed under a particular plan, it can order partial
payment to an alternate payee (an ex‐spouse, for example).” Id.

20100705‐CA 2
actual monthly military retirement benefit. The court calculated her share based on
Johnson’s actual retirement benefit, which was based on Johnson’s salary at the time of
retirement, less the disability reduction. The trial court also calculated Zoric’s share
based on Johnson’s gross monthly retirement benefit without first deducting federal,
state, and local taxes. However, the trial court determined that the doctrine of laches
barred Zoric from recovering her share of any retirement benefits paid before she filed
the QDRO.

ISSUES AND STANDARDS OF REVIEW

¶6 Johnson first contends that the trial court erred by calculating Zoric’s share of the
retirement benefit using his pay grade at the time of retirement instead of his pay grade
at the time of divorce. “A trial court has considerable discretion considering property
[division] in a divorce proceeding, thus its actions enjoy a presumption of validity. We
will disturb the trial court’s division only if there is a misunderstanding or
misapplication of the law such that a manifest injustice or inequity results, indicating an
abuse of discretion.” Oliekan v. Oliekan, 2006 UT App 405, ¶ 16, 147 P.3d 464 (applying
this standard of review to distribution of a retirement benefit) (citation and internal
quotation marks omitted).

¶7 Johnson next contends that the trial court erred by calculating Zoric’s share of the
retirement benefit based on his gross retirement pay rather than first deducting federal
and state taxes. This contention presents a question of law, which we review for
correctness. See Maxwell v. Maxwell, 796 P.2d 403, 404 (Utah Ct. App. 1990).

¶8 Johnson next contends that Zoric’s claim is barred by the applicable statute of
limitations. The application of a statute of limitations is a question of law, reviewed for
correctness. See Nolan v. Hoopiiaiana (In re Hoopiiaiana Trust), 2006 UT 53, ¶ 19, 144 P.3d
1129.

¶9 Finally, Johnson contends that Zoric’s claim is barred by the common law
doctrines of estoppel, waiver, and laches. These issues present mixed questions of law
and fact. See United Park City Mines Co. v. Stichting Mayflower Mountain Fonds, 2006 UT
35, ¶ 21, 140 P.3d 1200; Nunley v. Westates Casing Servs., Inc., 1999 UT 100, ¶ 31, 989 P.2d
1077; Anderson v. Doms, 1999 UT App 207, ¶ 8, 984 P.2d 392. We review the trial court’s

20100705‐CA 3
legal conclusions for correctness and its factual findings for clear error. See United Park
City Mines Co., 2006 UT App 35, ¶ 21; Nunley, 1999 UT 100, ¶ 31; Anderson, 1999 UT App
207, ¶ 8.

ANALYSIS

I. Retirement Calculation: Pay Grade

¶10 Johnson contends that the trial court erred in calculating Zoric’s share of his
retirement benefit based on Johnson’s pay grade at the time of retirement rather than
his pay grade at the time of the divorce.

¶11 An employee spouse’s retirement benefits are subject to equitable distribution in
a divorce proceeding, provided that the benefits “accrued in whole or in part during the
marriage.” Woodward v. Woodward, 656 P.2d 431, 433 (Utah 1982). Where the benefits
accrued in part during the marriage, the nonemployee spouse’s share is calculated
using what is commonly known as the time rule formula. See In re Marriage of Hunt, 909
P.2d 525, 531 (Colo. 1995). The time rule formula employs a “marital fraction” to
calculate the nonemployee spouse’s interest in the employee spouse’s pension benefit:

The marital fraction consists of the numerator[,] which is the
number of years (or months if more accurate) that the
employee spouse has earned towards the pension during the
marriage, over the denominator, which is the number of
years (or months if more accurate) of total service towards
the pension. The marital fraction is multiplied times the
monthly benefit and divided in half (in order to divide the
marital portion of the pension benefits).

Id.

¶12 Utah’s version of the time rule formula was explained in Woodward v. Woodward,
656 P.2d 431 (Utah 1982). In Woodward, the husband accrued fifteen years towards his
government pension during the parties’ marriage, but the parties divorced before the
husband’s pension had fully vested. See id. at 431‐32. The husband needed to work

20100705‐CA 4
thirty years to qualify for a government contribution to his pension, which would be
made at the time the husband retired, at least fifteen years after the divorce. See id. at
432. The issue was whether the amount of the husband’s pension that would be
contributed by the government at his retirement was a marital asset and thus
apportionable by the trial court at the time of the divorce. See id. at 431‐32. Much like
the argument advanced by Johnson in the instant case, the husband in Woodward argued
that the wife had no right to the amount of his pension that would be contributed by the
government because that amount was contingent upon his continued government
employment after the divorce. See id. at 432.

¶13 The supreme court held that the government contribution was a marital asset
subject to equitable division and that “the wife [was] entitled to share in that portion of
the benefits to which the rights accrued during the marriage.” Id. at 433. Furthermore,
because the husband had to “work for a total of thirty years, his pension benefits,
including any contribution by the government, [were] as dependent on the first fifteen
years as the last fifteen.” Id. The court then described what has come to be known as
the Woodward formula. Under that formula, “the marital property subject to
distribution is a portion of the retirement benefits represented by the number of years of
the marriage divided by the number of years of the husband’s employment.” Id. at 433‐
34. The non‐employee spouse is then awarded a share of that amount. Id.

¶14 Here, the trial court applied the Woodward formula without elaboration. It
divided the number of years of the marriage (ten) by the number of years of the
husband’s employment (twenty‐four) and multiplied the quotient by the wife’s share
(one‐half), yielding a percentage of 20.8%. Thus far the parties agree.3 They part
company on the question of what benefit amount this percentage should be applied to.
The trial court applied it to Johnson’s actual monthly retirement benefit, which is based
on his pay grade at retirement, E‐7.

¶15 Johnson maintains that Zoric’s share should be calculated by using his pay grade
at the time of the divorce, E‐5. Johnson argues that using his pay grade at the time of
retirement allows Zoric to unjustly reap the benefits of rank advancements that he

3. As explained below, based on a number of theories, Johnson does not concede that
Zoric is entitled to any of his retirement benefit. But assuming she is entitled, Johnson
agrees that she is entitled to 20.8%.

20100705‐CA 5
achieved—without her help—after the parties’ divorce. Zoric responds that Johnson
seeks the benefits of his post‐divorce years of service without the burdens. While
Johnson’s years of service after the divorce allowed him to increase his pay grade and
thus his retirement benefit, they also diluted Zoric’s share from 50% to 20.8%. Thus, she
reasons, if her portion of his retirement benefit is calculated based on his pay grade at
the time of the divorce, it should likewise be calculated based on her spouse’s share at
the time of the divorce (50%). Similarly, Zoric argues that if Johnson alone enjoys the
benefit of post‐divorce pay grade increases, he alone should bear the burden of the
deduction based on his post‐divorce disability.

¶16 The approach advocated by Johnson is sometimes referred to as the “bright line”
rule.4 Cases applying this rule “equate post‐dissolution pension benefit enhancements
with post‐dissolution earnings.” In re Marriage of Hunt, 909 P.2d 525, 533 (Colo. 1995).
A number of jurisdictions have applied this rule and held that the employee’s salary at
the time of the divorce should be used in calculating the spouse’s share of a pension
benefit. See, e.g., Armstrong v. Armstrong, 34 S.W.3d 83, 87 n.4 (Ky Ct. App. 2000)
(collecting cases).

4. The bright line rule may not be as simple in application as its name implies:
By logical extension, the “bright line” rule would require
courts to attempt to parse out the “marital” portion of the
post‐dissolution enhancement from the “separate” portion,
i.e., that portion attributable solely to the efforts of the
employee spouse and not related to the marriage
whatsoever. Implementation of the “time rule” formula, in
the first instance, accomplishes that goal and removes courts
from the complicated, time‐consuming, inefficient, and
hopelessly flawed task of evaluating the enhancement and
denominating the enhancement as either marital, separate,
passive, or some combination thereof. See Turner § 6.10 at 65
(2d ed. 1995 Supp.) (the time rule formula has the benefit of
simplicity because “it avoids the need to draw messy
distinctions between different types of postdivorce
increases”).
Hunt, 909 P.2d at 535.

20100705‐CA 6
¶17 The approach advocated by Zoric is sometimes referred to as the “marital
foundation” theory. This approach treats post‐divorce benefit enhancements as marital
property. See Hunt, 909 P.2d at 532. Courts employing this method maintain that post‐
divorce rank enhancements are often attainable only due to the “foundation work and
efforts undertaken during the marriage.” See id. at 533‐34 (gathering cases); Bullock v.
Bullock, 354 N.W.2d 904, 910 (N.D. 1984) (noting that the husband’s post‐divorce
“military career and earning ability were developed and enhanced throughout the
course of the parties’ seventeen year marriage”). In other words, this approach
recognizes that an employee cannot achieve a rank of E‐7 without having first achieved
a rank of E‐5, and so forth. It therefore uses the pay grade at the time of retirement to
calculate the receiving spouse’s share of the retirement benefit. See Hunt, 909 P.2d at
532‐34.

¶18 Like the “marital foundation” approach, the Woodward formula applies the
marital fraction to the employee spouse’s actual “retirement benefits.” Woodward, 656
P.2d at 433‐34. Woodward never suggests that the marital fraction should instead be
applied to a hypothetical figure based on what the employee spouse’s retirement
benefit would have been had he received no salary increases after the date of the
divorce. To do so would add a significant step to the Woodward formula.

¶19 Moreover, as noted above, the Woodward court stated that because the husband
“must work for a total of thirty years, his pension benefits, including any contribution
by the government, are as dependent on the first fifteen years as the last fifteen.” Id.
This statement is consistent with the underlying rationale of the “marital foundation”
theory, but inconsistent with the underlying rationale of the “bright line” theory
advocated by Johnson.

¶20 The trial court here merely applied the Woodward formula as written, without
taking the additional step that Johnson urges, but that Woodward itself never mentions.
The trial court thus acted well within its discretion.

II. Retirement Calculation: Net Benefit

¶21 Johnson next challenges the trial court’s ruling that Zoric’s share of the
retirement benefit should be calculated “prior to the deduction of any taxes.” Johnson

20100705‐CA 7
contends that “federal and state taxes should be removed from [his] disposable retired
pay before any allocation is determined.” We agree.

¶22 This court addressed this issue in Maxwell v. Maxwell, 796 P.2d 403 (Utah Ct.
App. 1990). In Maxwell, we noted that the United States Former Spouses Protection Act,
10 U.S.C.A. § 1408 (1983) (USFSPA), provides that “a court may treat disposable retired
or retainer pay payable to a member or as property of the member and his spouse in
accordance with the law of the jurisdiction of such court.” Maxwell, 796 P.2d at 405.
(quoting 10 U.S.C.A. § 1408(c)(1)) (internal quotation marks omitted). As we further
noted, the United States Supreme Court has interpreted this provision to mean that the
USFSPA “only grant[s] state courts discretion to divide ‘disposable retired or retainer
pay.’” Id. (quoting Mansell v. Mansell, 490 U.S. 581, 586 (1989)). The USFSPA defines
“disposable retired or retainer pay” as “gross retirement pay less authorized
deductions, including amounts properly deducted for federal, state, or local taxes.” Id.
(citing 10 U.S.C.A. § 1408(a)(4)(C)). We therefore held in Maxwell that the Supreme
Court had made “clear . . . that USFSPA does not authorize state courts to treat gross
retirement pay as marital property divisible upon divorce.” Id. at 406.

¶23 Accordingly, we reverse the ruling of the trial court on this issue and remand for
the court to recalculate Zoric’s portion of the retirement benefit using Johnson’s “gross
retirement pay less authorized deductions, including amounts properly deducted for
federal, state, or local taxes.” Id. (citing 10 U.S.C.A. § 1408(a)(4)(C)).5

III. Statute of Limitations

¶24 Johnson next contends that Zoric’s claim to a share of his pension benefits is
barred by the statute of limitations. As stated above, the trial court awarded Zoric no
portion of the retirement benefits paid before she filed the QDRO.6 However, it did
award her a share of benefits paid after the date she filed the QDRO. Johnson
challenges this award.

5. Zoric does not defend the trial court’s ruling on this point, but proposes “options for
addressing [Johnson’s] concerns with regard to payment of taxes.” How best to achieve
the result mandated by Maxwell and Mansell we leave to the trial court on remand.

6. Zoric does not challenge this ruling on appeal.

20100705‐CA 8
¶25 Johnson contends that Zoric’s claim is wholly barred by the applicable statute of
limitations. He relies on Utah Code Section 78B‐2‐311, which states, “An action may be
brought within eight years upon a judgment or decree of any court of the United States,
or of any state or territory within the United States.” Utah Code Ann. § 78B‐2‐311
(2008). He argues that although the decree was entered in 1984, Zoric “failed to do
anything to secure any kind of payment on that decree until 2008, nearly twenty‐four
years after the decree had been entered” and “more than nine years after [Johnson’s]
retirement.”

¶26 Johnson’s argument is foreclosed by Seeley v. Park, 532 P.2d 684 (Utah 1975). The
question before the court in Seeley was “whether or not the statute of limitation applies
to past due unpaid installments under a divorce decree.” Id. at 684. The court held that
“[i]nstallments under a decree of divorce for alimony or support of minor children
become final judgments as soon as they are due and cannot thereafter be modified.” Id.
Accordingly, “the statute begins to run against the judgment from the time fixed for the
payment of each installment for the part then payable.” Id. at 685 (quoting Simmons v.
Simmons, 290 N.W. 319, 320 (S.D. 1940)).

¶27 Although Seeley did not expressly address pension benefits, we see no
reason—and Johnson suggests none—why it should not apply to them. Moreover,
exempting retirement benefits from Seeley’s rule could result in an unacceptable
anomaly in cases such as this. If the limitations period had begun to run upon entry of
the decree, it would have expired on Zoric’s retirement benefits claim before Johnson
missed his first payment. Such an outcome would be troublesome at the very least. See
Berry v. Beech Aircraft Corp., 717 P.2d 670, 682‐86 (Utah 1985) (invalidating a statute
under Article I, Section 11 of the Utah Constitution because it was a statute of repose
that barred certain claims before the cause of action accrued).

¶28 Accordingly, we conclude that the trial court did not err in rejecting Johnson’s
argument that the limitations period should run from the date of the decree.

IV. Common Law Defenses

¶29 Finally, Johnson argues that the trial court erred in rejecting his common law
defenses of estoppel, waiver, and laches. We decline to address the merits of these
arguments because they are inadequately briefed.

20100705‐CA 9
¶30 An adequately briefed argument “contains the contentions and reasons of the
appellant with respect to the issues presented, including the grounds for reviewing any
issue not preserved in the trial court, with citations to the authorities, statutes, and parts
of the record relied on.” Utah R. App. P. 24(a)(9). An issue is inadequately briefed
“when the overall analysis of the issue is so lacking as to shift the burden of research
and argument to the reviewing court.” State v. Thomas, 961 P.2d 299, 304 (Utah 1998).
The reviewing court “‘is not simply a depository in which the appealing party may
dump the burden of argument and research.’” State v. Bishop, 753 P.2d 439, 450 (Utah
1988) (quoting Williamson v. Opsahl, 416 N.E.2d 783, 784 (Ill. App. Ct. 1981)). “And we
may refuse, sua sponte, to consider inadequately briefed issues.” State v. Lee, 2006 UT 5,
¶ 22, 128 P.3d 1179 (citing Utah R. App. P. 24(j); Bernat v. Allphin, 2005 UT 1, ¶ 38, 106
P.3d 707).

¶31 The section of Johnson’s brief addressing estoppel, waiver, and laches does not
satisfy the requirements of rule 24 of the Utah Rules of Appellate Procedure. Although
Utah courts have thoroughly addressed these doctrines, the brief cites no Utah cases.
Nor does it cite to the “parts of the record relied on” as required by rule 24. See Utah R.
App. P. 24(a)(9). “We recognize that lawyers operate within practical constraints. . . .
Nevertheless, our system is designed so that the ‘appellant must do the heavy lifting,’”
Niemela v. Imperial Mfg., Inc., 2011 UT App 333, ¶ 24, 263 P.3d 1191 (quoting State v.
Robison, 2006 UT 65, ¶ 21, 147 P.3d 448). Accordingly, we decline to reach these issues.

CONCLUSION

¶32 The trial court acted well within its discretion in applying the Woodward formula
as written rather than adding a step to that formula not included by our supreme court.
In addition, the court did not err in rejecting Johnson’s statute of limitations argument.
However, the trial court acted in violation of controlling law by calculating Zoric’s share
of Johnson’s military retirement benefit before adjusting Johnson’s benefit for state and
federal taxes. Finally, we decline to reach the merits of Johnson’s inadequately briefed
estoppel, waiver, and laches challenges.7

7. Both parties seek their attorney fees on appeal. We award no fees.

20100705‐CA 10
¶33 Affirmed in part, reversed in part, and remanded for further proceedings
consistent with this opinion.

____________________________________
J. Frederic Voros Jr.,
Associate Presiding Judge

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¶34 I CONCUR:

____________________________________
Michele M. Christiansen, Judge

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James Z. Davis, Judge (concurring in part and dissenting in part):

¶35 I concur in the majority’s opinion except as to Part I. I think the trial court should
have used the salary Johnson would have been earning at the time of retirement if he
had continued at the E‐5 rank in calculating Zoric’s share of the retirement benefit.

¶36 First, I disagree with the majority’s assertion that the trial court’s calculation of
the benefit was subject to an abuse of discretion standard. Certainly, a trial court’s
award of retirement benefits is entitled to deference.1 See Oliekan v. Oliekan, 2006 UT

1. There is nevertheless “an order to” the process of property distribution. See Hodge v.
Hodge, 2007 UT App 394, ¶ 5, 174 P.3d 1137 (mem.). In dividing marital property, a trial
court is expected to “recognize the presumption that [e]ach party is . . . entitled to all of
his or her separate property and fifty percent of the marital property.” Id. (alteration
and omission in original) (internal quotation marks omitted). In order to depart from
(continued...)

20100705‐CA 11
App 405, ¶ 16, 147 P.3d 464. But the award itself was determined by the trial court
when the parties divorced in 1984: Zoric was awarded half of the marital share of the
retirement benefit, to be paid as Johnson began receiving the retirement benefit. When
Zoric sought to actually obtain her share of the retirement benefits in 2008, the trial
court was tasked only with determining whether the additional benefit realized as a
result of Johnson’s promotion was subject to distribution under the Woodward formula,
a determination that, unlike the award itself, is not entitled to deference. Where a party
has been awarded an equal share of the marital portion of the other party’s retirement,
as here, the correct calculation is a matter of law because it turns on the question of
what portion of the retirement benefit constitutes marital property. See generally Poll v.
Poll, 2011 UT App 307, ¶ 6, 263 P.3d 534 (explaining that the question of whether
property is marital or separate is a question of law, which we review for correctness),
cert. denied, No. 20110894 (Utah Jan. 17, 2012).

¶37 I believe that the entire difference between the E‐7 retirement benefit and the E‐5
retirement benefit should be considered separate property, as a matter of law, and that
Zoric should not be entitled to a 20.8% share of that difference. Thus, I disagree with
both the “bright line” theory and the “marital foundation” theory, see supra ¶¶ 16‐17, as
used in the context of this case. This is not a situation where the employee spouse
received normal raises, such as cost of living and the like, while continuing in the same
employment. In such a situation, I would agree with the majority that the marital
foundation theory is the more appropriate approach. But in this case, Johnson received
a promotion to a position with a higher pay grade. Zoric did not contribute to this
promotion, which occurred after the marriage ended.2 Unlike periodic raises,

1. (...continued)
that presumption, the trial court must make a specific finding of “exceptional
circumstances warranting such a departure.” Id. (internal quotation marks omitted).
Unless such circumstances are found, the trial court may not award a party less than his
or her equal share of the marital property. The trial court also has significant discretion
to determine how best to achieve the equal distribution, see id. ¶ 4; Boyer v. Boyer, 2011
UT App 141, ¶¶ 10‐11, 259 P.3d 1063, although deferred distribution is preferred in the
case of undefined benefits, see Bailey v. Bailey, 745 P.2d 830, 832‐33 (Utah Ct. App. 1987).

2. I do not agree with the majority’s assertion that Zoric contributed to the promotion
merely because Johnson could not have “achieve[d] E‐7 without having first achieved
(continued...)

20100705‐CA 12
promotion to a higher position does not necessarily occur in the course of employment.
Therefore, an additional return on Zoric’s investment in Johnson’s retirement, based on
his later promotion to E‐7, was not part of her expected benefit at the time of the
divorce.3

¶38 My approach is not equivalent to that advocated by the bright line approach,
which calculates a spouse’s share of a pension benefit using the employee’s salary at the
time of divorce, see supra ¶ 16, because I would give Zoric the benefit of increases to the
retirement benefit due to normal raises in the E‐5 salary—a benefit I believe she is
entitled to in return for her having to wait for payment of her share of the retirement.
Given that the E‐5 salary at the time of Johnson’s retirement may be easily determined,4

2. (...continued)
E‐5,” supra ¶ 17. Although there are certainly circumstances where one spouse is
entitled to compensation for contributions made to the other spouse’s earning capacity,
cf. Utah Code Ann. § 30‐3‐5(8)(vii) (Supp. 2011) (providing that “whether the recipient
spouse directly contributed to any increase in the payor spouse’s skill by paying for
education received by the payor spouse or allowing the payor spouse to attend school
during the marriage” is a factor the trial court should consider in awarding alimony),
there is no evidence of any specific contribution made by Zoric to Johnson’s earning
capacity apart from the fact that she was married to him while he was employed at the
E‐5 rank. It is to be expected that a person’s earning capacity will generally increase
throughout his or her life, with or without the assistance of a spouse, and I do not
believe that a person is entitled to benefit from all future improvements in his or her
spouse’s financial situation merely by virtue of their having been married for some
period of time.

3. It is true that employees will frequently receive promotions in the course of their
careers, but the benefits of such promotions are merely hoped for, not expected.

4. I recognize that such a calculation may not be possible in circumstances where an
employee’s position does not have a clearly defined salary. In such circumstances, it
may be necessary to calculate the spouse’s share based on the actual retirement
benefit—somewhat analogous to equally dividing technically “separate” property due
to its having been “inextricably commingled” with the marital estate, see, e.g., Burt v.
(continued...)

20100705‐CA 13
I would calculate Zoric’s pension benefit as 20.8% of the benefit Johnson would have
received if he had retired at the E‐5 rank.5 I do not believe that this approach would
unduly complicate the Woodward formula, and I think it would ultimately result in a
more accurate and equitable method of dividing the marital portion of undefined
retirement assets.

____________________________________
James Z. Davis, Judge

4. (...continued)
Burt, 799 P.2d 1166, 1169 (Utah Ct. App. 1990). However, where a more accurate
calculation is possible, such as in the case of military or government employees, I
believe the more accurate calculation should be made.

5. Consistent with this position, I would assert that the same would be true if Johnson
had received a demotion to a lower salary level. Despite such a demotion, Zoric would
still be entitled to what she would have received if Johnson had remained at the E‐5
rank. Such a result is supported by Woodward’s explanation that a spouse who is
awarded an equal share of deferred retirement proceeds is entitled to a share of the
retirement even if the employee spouse elects to leave his employment before the
retirement benefits vest. See Woodward v. Woodward, 656 P.2d 431, 433 (Utah 1982).

20100705‐CA 14